Case o' The Week: Bad Facts Make Good Law -- Yuman-Hernandez and Sentencing Entrapment
The Ninth delivers an opinion that has everything we could want: thoughtful clarification of a defense theory that helps ease our burden, rejection of a government approach that would make a defense functionally impossible, and a stern warning that the Circuit takes a “hard look” at a particularly troubling category of cases.
A win across the board (except, sadly, for the defendant himself). United States v. Yuman-Hernandez, 2013 WL 1395811(9th Cir. Apr. 8, 2013), decision available here.
Players: Decision by Judge Goodwin, joined by Judge Fletcher and visiting District JudgeKorman.
Facts: Yuman-Hernandez was convicted of conspiracy to rob a stash house and use of a firearm. Id. at *1. An agent, pretending to be a courier, met with the heavy and his “crew” – including Yuman-Hernandez – and planned a robbery of a (fake) stash house “containing” over 20 kg. of cocaine. Id. Yuman-Hernandez had an opportunity to withdraw, and didn’t. Id. He recruited a co-defendant. Id. He also drove the heavy, to get marijuana to trade for an assault rifle for the robbery. Id. A co-defendant testified the heavy told Yuman-Hernandez he’d get paid when the cocaine was sold. Id. At sentencing, the district court found Yuman-Hernandez had not met his burden to prove sentencing entrapment argument, and imposed the mand-min sentence of 180 months.
Issue(s): “Yuman–Hernandez appeals his . . . mandatory-minimum sentence, assigning error to the district court's rejection of his sentencing entrapment argument. He argued a lack of predisposition to commit an offense involving the amount of cocaine charged, and was thus entrapped.” Id. at *1.
Held: “Yuman–Hernandez takes issue with what he perceives to be a lack of evidence showing an affirmative predisposition to commit a crime involving twenty to twenty-five kilograms of cocaine. But Yuman–Hernandez ignores the fact that it was his burden to show a lack of predisposition. The district court's finding was reasonable in light of this burden. Yuman–Hernandez complains most forcefully that he was not financially capable of purchasing the amount of cocaine at issue. But his ability to purchase any given amount of cocaine is not relevant. Instead, the predisposition-capability concerned here is that to conspire with others to take the amount of cocaine involved by force. His argument fails even if the question is construed as whether he lacked predisposition to handle a large amount of cocaine. He was involved as a member of a stick-up crew; there is no indication he would have been expected to deal or otherwise offload the cocaine by himself after the robbery. Testimony showed [the heavy] intended to sell the cocaine himself and distribute the proceeds — Yuman-Hernandez needed only provide muscle. While the question of his capability to steal twenty to twenty-five kilograms as opposed to some smaller amount is less enlightening in this context, the cumulative evidence tended to not only rebut any argument that he lacked intent, but in fact show the affirmative existence of intent. Further, Yuman–Hernandez offered no evidence to suggest otherwise—a fatal error in light of his burden. Thus, the district court did not abuse its discretion in rejecting the sentencing entrapment argument.” Id. at *3.
Of Note: Loss for this defendant, but this great opinion is a defense win. Judge Goodwin untangles the confusion surrounding sentencing entrapment. He clarifies that in the context of fake stash house robberies, it is not the defendant’s burden to establish both a lack of intent and a lack of capability. Id. at *3. [I]n the case of fictitious stash house robberies, the defendant need only show a lack of intent or lack of capability to deal in the quantity of drugs charged.” Id. at *3.
Judge Goodwin also explains that “outrageousness is not itself an independent prong of sentencing entrapment.” Id. Very important holding: a case needn’t be “outrageous” for sentencing entrapment to be a viable defense theory.
How to Use: The Ninth gives sting operations with stash houses a “hard look.” Id. at *3. You should give Yuman-Hernandez a hard look if you have such a case, or any sentencing entrapment issue: it is a lead decision.
For Further Reading: Did you hear about the new Speedy Trial Act exclusion? Continue the trial, because we don’t have money to mount a defense? For a remarkable tale of sequestration’s impact on the biggest active terrorism case on American soil, see the New York Times article here.
Image of “Stash House” from http://ffilms.org/wp-content/uploads/2012/06/Stash-House.jpg
Image of Uncle Sam and sequestration scissors from http://www.rand.org/blog/2013/02/the-state-of-the-union-2013.html
Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org